family dissolution principles - duke university.pdfVIP

FEMINISM AND CHILD CUSTODY UNDER CHAPTER TWO OF THE AMERICAN LAW INSTITUTE’S PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION MARGARET F. BRINIG* I. INTRODUCTION The Chief Reporter of the American Law Institute’s Principles of the Law of Family Dissolution wrote in his introduction; “Children are necessarily at the heart of any set of principles of family law.”1 My favorite chapter of the Principles is Chapter Two, entitled “Principles Governing the Allocation of Custodial and Decisionmaking Responsibilities for Children.”2 As of this writing, Chapter Two holds the distinction of being the only portion to have been adopted by a state legislature.3 While other Chapters had Reporters who were women,4 Chapter Two not only had a feminist Reporter,5 but the Copyright © 2001 by Margaret F. Brinig. * Professor of Law, University of Iowa. 1. P RINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS Chief Reporter’s Preface at xiii (Tentative Draft No. 3, Part I, 1998) [hereinafter ALI PRINCIPLES 1998]. 2. The title of the chapter, which of course does not refer to “child custody,” represents a conscious decision to “alternative language more accommodating to a continuum of residential arrangements.” ALI PRINCIPLES 1998, supra note 1, § 2.03, reporter’s notes at 53 (citing state statutes with similar terminology). The Comments to the Section note that “this substitution is intended to avoid the either-or (custody or visitation) alternatives sug